Summary Judgment in California PI Cases.

Overview

When the defense files a summary judgment motion, they are asking the judge to end your case without a trial. This guide covers how your attorney fights back.

CCP 437c: Statutory Framework

Summary judgment in California is governed by CCP 437c. The statute was substantially revised in 1992-93 and has been frequently amended since. Key provisions:

Provision	CCP Section	Summary
Motion standard	437c(c)	No triable issue of material fact; moving party entitled to judgment as a matter of law
Defendant's burden	437c(p)(2)	Show plaintiff cannot establish an element or that an affirmative defense bars the claim
Plaintiff's burden (opposition)	437c(p)(2)	Show a triable issue of material fact exists
Separate statement requirement	437c(b)(1)	Moving party must file a separate statement of undisputed material facts
Timing	437c(a)	Filed 75 days before hearing; opposition 14 days before; reply 5 days before
Continuance for discovery	437c(h)	Mandatory continuance if opposing party shows facts may exist but cannot yet be presented
Summary adjudication	437c(f)	May be granted on individual causes of action, affirmative defenses, or issues of duty

The Burden-Shifting Framework

Understanding the burden-shifting framework is critical to opposing summary judgment effectively.

Step 1: Defendant's Initial Burden

The defendant (moving party) bears the initial burden of showing that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense to the cause of action. CCP 437c(p)(2).

The defendant may meet this burden in two ways:

1. Affirmative evidence negating an element of the plaintiff's claim (e.g., expert declaration that defendant met the standard of care)
2. Factually devoid showing -- evidence that the plaintiff does not possess and cannot reasonably obtain evidence to prove an essential element (e.g., discovery responses showing plaintiff cannot identify the substance that caused a slip and fall)

Step 2: Plaintiff's Burden in Opposition

Once the defendant meets the initial burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. This requires producing evidence -- not argument, not speculation, not hope -- that creates a genuine factual dispute on the challenged element.

The Aguilar Framework

The California Supreme Court in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 established the controlling framework:

1. The court must consider all evidence set forth in the moving and opposition papers, except evidence to which objections have been sustained
2. The evidence is viewed in the light most favorable to the opposing party
3. All reasonable inferences are drawn in favor of the opposing party
4. The court does not weigh evidence or assess credibility -- those are jury functions
5. If reasonable minds could differ on the inferences from the evidence, the motion must be denied

Timing and Procedural Requirements

Filing and Hearing Deadlines

Action	Deadline	Authority
Filing and service of motion	75 days before hearing	CCP 437c(a)
Additional time for mail service	+5 calendar days	CCP 1013(a)
Additional time for electronic service	+2 court days	CCP 1010.6
Opposition papers	14 days before hearing	CCP 437c(b)(2)
Reply papers	5 days before hearing	CCP 437c(b)(3)
Hearing	30 days after filing (or first available date)	CCP 437c(a)

The Separate Statement

Defendant's Separate Statement

CRC Rule 3.1350 and CCP 437c(b)(1) require the moving party to file a separate statement of undisputed material facts. Each fact must:

• Be stated in a single, concise sentence
• Be supported by a citation to evidence in the record
• Be material to the motion -- not background or context

Plaintiff's Responsive Separate Statement

The opposing party must file a responsive separate statement that, for each fact:

1. States whether the fact is disputed or undisputed
2. If disputed, cites evidence that creates the dispute
3. May include additional material facts the plaintiff contends are disputed

Additional Material Facts

CRC Rule 3.1350(c)(2) allows the opposing party to include a section of additional material facts in the responsive separate statement. Use this to affirmatively present facts that:

• Support the plaintiff's version of events
• Show the defendant's conduct was negligent
• Establish disputed issues the defendant's motion ignores
• Highlight the credibility disputes that preclude summary judgment

Evidence in Opposition

Types of Evidence

Your opposition must be supported by admissible evidence. Acceptable forms include:

Evidence Type	Foundation Required	Common Use
Declarations	Personal knowledge, competence (Evid. Code 702)	Plaintiff's account, percipient witnesses
Deposition excerpts	Certified transcript or declaration authenticating	Defendant's admissions, witness testimony
Interrogatory responses	Verified responses (party admissions)	Defendant's admissions of fact
RFA responses	Admitted matters are conclusive	Established facts
Documents	Authentication (Evid. Code 1400 et seq.)	Medical records, reports, photographs
Expert declarations	Qualification + opinion + basis	Causation, standard of care, damages

The Plaintiff's Declaration

The plaintiff's declaration is often the most critical evidence in opposition. It must:

• [ ] Be based on personal knowledge (CCP 437c(d))
• [ ] Set forth specific facts showing a triable issue exists
• [ ] Not contain conclusions, speculation, or argument
• [ ] Be consistent with prior sworn testimony (deposition, interrogatories)
• [ ] Address each challenged element of the cause of action
• [ ] Include sensory details where possible (what the plaintiff saw, heard, felt)

Expert Declarations

In many PI cases, expert declarations are essential to oppose summary judgment on causation or standard of care:

• The expert must be qualified in the relevant specialty
• The declaration must state the expert's opinions with specificity
• The expert must state the basis for each opinion (materials reviewed, experience, scientific principles)
• The opinions must be stated to a reasonable degree of medical/scientific certainty
• Conclusory expert declarations (opinions without explained bases) may be disregarded

Evidentiary Objections

Objecting to Defendant's Evidence

Review the defendant's evidence carefully and object to:

• Lack of personal knowledge: Declarations based on information and belief
• Hearsay: Out-of-court statements offered for truth without an exception
• Lack of foundation: Documents without authentication
• Improper expert opinions: Conclusions without stated basis or qualifications
• Speculation: Testimony about matters the declarant cannot know
• Secondary evidence rule: Copies without accounting for originals (Evid. Code 1521)

Responding to Objections to Your Evidence

The defendant will object to your opposition evidence. Anticipate and preempt common objections:

• [ ] Ensure all declarations state facts based on personal knowledge
• [ ] Authenticate all documents properly (business records declaration, Evid. Code 1560-1561)
• [ ] Include foundation for expert qualifications and opinions
• [ ] Avoid hearsay -- or identify applicable exceptions
• [ ] Cite deposition testimony by page and line number with transcript attached
• [ ] Avoid conclusory statements -- provide specific facts

Continuance for Discovery: CCP 437c(h)

The Mandatory Continuance

CCP 437c(h) provides a critical safety valve: if the opposing party shows by declaration that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall grant a continuance to permit additional discovery.

Requirements for a 437c(h) Declaration

The declaration must:

1. Identify specific facts that may exist and would create a triable issue
2. Explain why those facts cannot presently be presented (discovery incomplete, documents not yet produced, depositions not yet taken)
3. State what discovery is needed to obtain the essential facts
4. Show diligence -- that the opposing party has not unreasonably delayed in conducting discovery

When to Seek a Continuance

• Discovery was not yet complete when the motion was filed
• Key depositions have not been taken
• Document production is outstanding
• Expert designations have not yet occurred
• The defendant filed the motion early in the case, before discovery could be conducted

Common Summary Judgment Issues in PI Cases

Duty

Defense arguments:

• No duty of care owed (e.g., no duty to a trespasser, no duty to protect against third-party criminal acts)
• Duty limited by statute (e.g., Government Code immunity provisions)
• Open and obvious hazard negates duty to warn

Plaintiff's response:

• Cite CACI jury instructions establishing the applicable duty
• Argue that the scope of duty is a question of law, but foreseeability of harm is a question of fact
• Distinguish cases cited by the defense
• Present evidence of defendant's actual or constructive knowledge of the hazard

Causation

Defense arguments:

• Plaintiff cannot establish the defendant's conduct was a substantial factor in causing harm
• Intervening or superseding cause breaks the causal chain
• Preexisting conditions caused the plaintiff's injuries, not the incident

Plaintiff's response:

• Expert declaration on medical causation (treating physician or retained expert)
• Temporal relationship: symptoms began after the incident
• Aggravation doctrine: defendant takes the plaintiff as they find them (CACI 3927)
• Lay testimony on before-and-after condition

Statute of Limitations

Defense arguments:

• Action filed beyond the applicable limitations period
• Plaintiff knew or should have known of the injury and its cause more than 2 years before filing

Plaintiff's response:

• Delayed discovery doctrine: plaintiff did not discover and could not have discovered the injury/cause until a later date
• Tolling: defendant's fraudulent concealment, plaintiff's minority, mental incapacity
• Disputed facts on when the plaintiff knew or should have known -- creates triable issue

Comparative Fault

Defense arguments:

• Plaintiff was solely responsible for their own injuries
• Plaintiff's conduct was the sole proximate cause

Plaintiff's response:

• Comparative fault is a question of fact for the jury -- rarely appropriate for summary judgment
• Even if plaintiff was partially at fault, California's pure comparative negligence system (Li v. Yellow Cab) permits recovery
• Present evidence that defendant's negligence was at least a contributing factor

Government Immunity

Defense arguments:

• Public entity immune under Government Code 815 et seq.
• Design immunity (Gov. Code 830.6)
• Discretionary immunity (Gov. Code 820.2)

Plaintiff's response:

• Identify specific statutory basis for liability (Gov. Code 835 -- dangerous condition of public property)
• Show immunity does not apply (changed physical conditions negate design immunity)
• Present evidence that the condition was dangerous and the entity had notice

Summary Adjudication: CCP 437c(f)

When Summary Adjudication is Appropriate

Summary adjudication may be granted as to:

1. One or more causes of action within the complaint
2. One or more affirmative defenses
3. One or more claims for damages (e.g., punitive damages)
4. One or more issues of duty (CCP 437c(f)(1))

Strategic Considerations

• Defendants often seek summary adjudication of punitive damages claims to limit discovery and settlement leverage
• Summary adjudication of individual causes of action may narrow the case but leave other claims intact
• Opposing summary adjudication uses the same framework as opposing summary judgment

Practical Opposition Checklist

• [ ] Calendar all deadlines (opposition due 14 days before hearing)
• [ ] Review the separate statement and identify every fact you can dispute
• [ ] Gather evidence to dispute each challenged fact
• [ ] Draft the plaintiff's declaration (ensure consistency with deposition testimony)
• [ ] Obtain expert declarations if needed for causation or standard of care
• [ ] Prepare the responsive separate statement with evidence citations
• [ ] Draft the memorandum of points and authorities
• [ ] Prepare evidentiary objections to defendant's evidence
• [ ] Include a CCP 437c(h) declaration requesting continuance (as fallback)
• [ ] File and serve opposition papers timely
• [ ] Prepare for oral argument (know the key facts and law cold)

Related Pages

• Discovery -- Building the evidentiary record to oppose MSJ
• Depositions -- Using deposition testimony in opposition
• Interrogatories -- Using interrogatory responses as evidence
• Requests for Admission -- Using admissions against the defense
• Law and Motion -- Motion practice fundamentals
• Demurrer -- Related pleading challenges
• Expert Witnesses -- Expert declarations in opposition

Cross-References

• Law & Motion
• Discovery
• Evidence Rules
• Depositions
• Demurrer
• Trial Practice

Common Questions

Sources & Legal Citations

1. California Code of Civil Procedure § 437c. Summary judgment procedure and standards.
2. California Code of Civil Procedure § 437c(h). Continuance for discovery not yet completed.
3. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. Burden-shifting framework for summary judgment.
4. Code of Civil Procedure § 437c(f). Summary adjudication of individual issues.
5. Sangster v. Paetkau (1998) 68 Cal.App.4th 151. Standards for opposing summary judgment.
6. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832. Evidence requirements in opposition to summary judgment.